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Oak Creek, City of v. Milwaukee Metro. Sewerage Dist.

Citation: 14 ELR 20390
No. No. 83-C-221, 576 F. Supp. 482/20 ERC 1890/(E.D. Wis., 12/14/1983)

The court rules that defendants' condemnation of plaintiffs' lands for a sewage sludge landfill neither deprived plaintiffs of their civil rights nor violated the National Environmental Policy Act (NEPA). After selecting plaintiffs' land as a disposal site, defendants materially changed their disposal plans, but nonetheless began condemnation proceedings without reevaluating sites. Plaintiffs brought an action under 42 U.S.C. § 1983, arguing that the condemnation without reconsideration of the site was arbitrary, capricious, and in bad faith, in violation of the Fourteenth Amendment substantive due process guarantees. Finding no compelling evidence of a genuine civil rights violation, the court holds that § 1983 does not confer federal jurisdiction over this local land use decision.

The court also holds that NEPA does not require an environmental impact statement (EIS) on defendants' site planning study prior to condemnation. In observes that the Environmental Protection Agency will complete an EIS prior to commitment of federal construction funds and has provided no federal funds for acquisition. It finds that the environmental consequences of the project will result from construction, not acquisition. The court reasons that to require an EIS now would amount to undue judicial involvement in agency decisionmaking and the preparation of unnecessary impact statements.

Counsel for Plaintiffs
Prof. Alan Cutler Weinstein
Dep't of Urban Planning, University of Wisconsin
P.O. Box 413, Milwaukee WI 53201
(414) 936-5563

Patrick Walsh
Thomas, Parsons, Schaefer & Bauman
7 N. Pinckney St., Madison WI 53703
(608) 255-4440

Counsel for Defendants
David S. Branch, Sr. Staff Attorney
Milwaukee Metropolitan Sewerage District
735 N. Water St., Milwaukee WI 53202
(414) 272-5100